'Stunning, shocking': Boxer hadn't expected her final months in Senate would include Supreme Court fight

1991 congressional protest

Associated Press

U.S. Rep. Patricia Schroeder (D-Colo.), center, leads a Democratic delegation from the House of Representatives to the U.S. Senate on Oct. 8, 1991, to voice concern over the Supreme Court nomination of Clarence Thomas. With her are, from left, Louise M. Slaughter of New York, Barbara Boxer of California, Eleanor Holmes Norton of the District of Columbia, Nita M. Lowey of New York, Patty T. Mink of Hawaii and Joelene Unsoeld of Washington State.

U.S. Rep. Patricia Schroeder (D-Colo.), center, leads a Democratic delegation from the House of Representatives to the U.S. Senate on Oct. 8, 1991, to voice concern over the Supreme Court nomination of Clarence Thomas. With her are, from left, Louise M. Slaughter of New York, Barbara Boxer of California, Eleanor Holmes Norton of the District of Columbia, Nita M. Lowey of New York, Patty T. Mink of Hawaii and Joelene Unsoeld of Washington State.

Barbara Boxer traces the beginning of her Senate career to an October 1991 day when she and six female colleagues from the House marched across the Capitol and demanded that senators consider Anita Hill's sexual harassment allegations against then-Supreme Court nominee Clarence Thomas.

An enlarged black and white photo from that walk is prominently displayed in the lobby of Boxer's Washington office.

"Without Anita Hill's bravery, I would not be here in the Senate. Period. No way," Boxer said recently.

"To have a state elect two women from Northern California, both Jewish women, that was a bridge too far for most people, but when they looked at the Senate and they saw the Judiciary Committee without one woman on it… it changed everything," Boxer said.

Sitting near a smaller color version of the same photo in her private office, Boxer says she didn't expect her more than two decades in Washington to end with another fight about the Supreme Court.

Justice Antonin Scalia's Feb. 13 death was unexpected, as was the Senate Republican leadership's announcement that they won't hold hearings or meet with a nominee until after the November election. They argue that a president with less than a year left in office shouldn't make such a consequential decision.

Democrats say that with more than 300 days left in office, it's President Obama's responsibility to fill the position rather than leave the court evenly split for at least another session.

"It's the first time in my history with Supreme Court vacancies, and I've voted on six, that I've seen a political party just say 'No, we're not going to hold a hearing, we don't care who it is,'" Boxer said. "This is unheard of. This is stunning, shocking and it's terrible for the American people. We're supposed to do our jobs."

How California's Senators voted

Yea

Justice Stephen Breyer; Nominated by President Clinton in 1994

Justice Ruth Bader Ginsburg; Clinton, 1993

Justice Elena Kagan; Obama, 2010

Justice Sonia Sotomayor: Obama, 2009

Nay

Chief Justice John Roberts: Bush, 2005

Justice Samuel Alito: Bush, 2005

Neither Boxer or Feinstein would speculate on whether Republicans might waver in the months ahead, especially after the president puts forth a nominee.

Only nine sitting senators have served longer than Boxer and Feinstein and California's senators have considered six of the eight justices on the bench.

"We haven't had this situation," Feinstein said in an interview between meetings. "This will have been the first Supreme Court justice where the Senate refuses to even receive a nominee, to hear that nominee and to vote on that nominee."

They've seen fights over nominees before, but not like this.

In 2006, Boxer, Feinstein and two dozen Democrats voted in favor of filibustering Samuel Alito's confirmation. He was later confirmed 58-42, the closest confirmation vote since Thomas. Republicans said at the time the filibuster attempt set a dangerous precedent.

"There is only one way to send this nomination back to the president ... and that is to get 41 votes for a filibuster," Boxer was quoted as saying in a Jan. 27, 2006, article in The Times.

Boxer said this week that if Republicans want to block Obama from filling Scalia's seat, they could have tried that route.

"If people want to filibuster they have a perfect right to," she said. "I totally support it for Supreme Court, but I don't support shutting down the process, not even meeting with the candidate, not even considering the candidate, not holding a hearing."

Looking at the history

Both Democrats and Republicans have tried to use historical examples to make the case for the Senate waiting or moving ahead.

Democrats released a video Thursday morning of several Senate Judiciary Committee Republicans saying that the committee is obligated to consider a judicial nominee, regardless of partisan politics.

The Judiciary Committee, led by several of the longest-serving senators, devoted the beginning of the panel's meeting Thursday to evaluating historical examples.

Judiciary Chairman Chuck Grassley (R-Iowa) referenced Thomas' confirmation fight and wrangling over the unsuccessful 1987 confirmation of Judge Robert Bork, saying he won't consider a nominee in such a politically charged year.

"I saw what happened to both of them. I saw what happened to their records, to their reputations, and to their families. If anyone wants to argue that either one of those individuals was treated to a fair process, they're free to make that argument. But to this senator, it would be laughable, if it weren't so sad," he said.

Graham, who ended his bid for the Republican presidential nomination this year, warned colleagues that not considering a nomination in a president's final year will become the norm and will encourage each political party to select more ideologically pure judges.

Feinstein, who has served on Judiciary since taking office, noted that Thomas got a vote by the full Senate in 1991 even though the committee (led by then-Sen. Joe Biden) didn't support him.

"What is happening today is contrary to our committee's practices," she said. "It is this body's job, this committee's job to look carefully at the nominee and give that person a fair hearing and a vote."

The Senate hasn't left a vacancy on the court for a year since the Civil War, Feinstein said. She quoted President Lincoln's inaugural address in urging her colleagues to act.

"I'm appealing to the better angels of your nature. When there is a nominee, do what we have done in the past, give the nominee careful consideration, meet with the nominee, ask the nominee questions, hold a hearing and then hold a vote both here and on the floor," Feinstein said. "Vote no if you want, but let's have the fair process that's our tradition."